CHOICE PLASTICS, INC.
TERMS AND CONDITIONS OF SALE
SALES ORDER AND INVOICE ARE ACCEPTED ON THE FOLLOWING TERMS AND CONDITIONS UNLESS AGREED OTHERWISE IN A WRITTEN AGREEMENT EXECUTED BY BOTH PARTIES:
1. TERMS OF PAYMENT: Terms of payment shall be in accordance with Choice Plastics, Inc.’s (“Seller”) invoice and shall be subject to change by Seller in the same manner as changes in price. Payments should be made at the direction of the Seller. A one and one-half percent per month service charge (18 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments. Any attorney fees and/or expenses incurred in any collection efforts of any unpaid past due balance of the Buyer, will be responsibility of Buyer.
2. EXCUSE OF PERFORMANCE: No liability shall result from delay in performance caused by circumstances beyond the control of the party affected, including but not limited to, act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation.
3. FINANCIAL RESPONSIBILITY: If at any time and for any reason the financial responsibility of the Buyer shall become unsatisfactory to Seller, Seller may require cash or satisfactory security on subsequent shipments or deliveries without impairing the obligation of Buyer to take and pay for the quantity of goods ordered.
4. LIABILITY: Buyer shall examine the goods for nonconformity promptly upon receipt. All claims of whatever nature shall be deemed waived unless all defects ascertainable at the time of giving notice are stated with particularity in writing and received by Seller, within ten (10) days of Buyer’s receipt of shipment.
Seller shall in no event be liable for any incidental or consequential damages. Seller’s liability and Buyer’s exclusive remedy for any cause of action arising out of this transaction and its performance, including negligence, is expressly limited to replacement of nonconforming goods or payment in an amount not to exceed the purchase price of the specific goods for which damages are claimed at Seller’s option.
5. WARRANTIES: SELLER MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY FACT OR BY LAW, OTHER THAN ITS OBLIGATION TO DELIVER GOODS OF SELLER’S STANDARD QUALITY. SELLER MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
6. WAIVER: The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms and Conditions or invoice or to take advantage of any of its rights shall not operate as a continuing waiver of such rights.
7. ASSIGNMENT: No order or its rights or obligations, is assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.
8. NOTICES, GOVERNING LAW: Minnesota law governs the validity, interpretation and enforcement of this contract. Venue for all legal proceedings arising out of this contract, or its breach, will be in the applicable state or federal court with competent jurisdiction in Hennepin County, Minnesota.
9. MODIFICATION, MERGER: These Terms and Conditions may be modified or revised only by a writing signed by authorized agents of the parties. Unless the goods covered by the Invoice are the subject of a written contract signed by parties, the Invoice and these Terms and Conditions shall constitute the entire agreement between the parties and there are no understandings, agreements or representations, express or implied, not specified herein. For the avoidance of doubt, if a written contract signed by both parties is in existence covering the sale of the goods covered hereby, the terms and conditions of said contact shall prevail to the extent they are inconsistent with these Terms and Conditions.
10. EXPORT/EXPORT CONTROL: Any commodities purchased by Buyer hereunder are exported from the United States in accordance with the export administration regulations. Diversion contrary to U.S. law is prohibited. With respect to the exportation or resale of the product by the Buyer, the Buyer agrees to comply with all local and United States government export control laws and regulations (“export controls”). Export controls include, but are not limited to, laws pertaining to (I) export licenses, (II) restrictions on export to certain embargoed countries and (III) restrictions on sales to certain persons and certain entities.